The Colour of Cadbury

Trademark Law, in its role as the legal guardian for brands, has made another valuable addition to its arsenal, this time in terms of colours. A shade / colour / colours that the public may have come to associate with a particular product or service, is protectable as a Trademark.

We are aware of the Court decisions in Louboutin (where its shoe’s red soles were brought under the protection of law, provided that the colour of the rest of the shoe was contrasting), Harrod’s (where the up market departmental store trademarked the shade of green the public associated it with) and a few others, where the colour of the brand played the protagonist’s role in securing its protection. In 2004, Cadbury had applied to register the shade, “Pantone 2685C” as a trademark for its chocolates. The application was approved in 2008 but was objected to by Swiss rival, Nestle. The High Court, ruling in favour of Cadbury, opined that the particular shade of purple that Cadbury wrapped its chocolates in was something the public had come to associate Cadbury with. The shade had become synonymous with Cadbury and therefore deserved Trademark protection. Nestle’s argument that a colour was not a sign that could be represented graphically was not accepted by the Birmingham High Court.

However, the protection encompasses only chocolates in bar and block/tablet form, drinking chocolate and preparations for making such chocolate, meaning other manufacturers can still make chocolate pastries, pudding and other foods and use purple wrapping for the same (except the shade “Pantone 2685C”, of course).

This got us thinking, maybe it’s time a few Indian brands considered Trademarking their colours in terms of their respective products or services. There are a number of Indian brands out there that compete to provide similar services, E.g. – Insurance services, financial services etc.that have different looking logos but with very similar colours.